U.S. v. Mahar

• Decision Date: 14 April 1977
• Docket Number: No. 76-1316,76-1316
• Citation: U.S. v. Mahar, 550 F.2d 1005 (5th Cir. 1977)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bill MAHAR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1005

550 F.2d 1005

UNITED STATES of America, Plaintiff-Appellee, v.Bill MAHAR, Defendant-Appellant.

No. 76-1316.

United States Court of Appeals Fifth Circuit.

April 14, 1977.

Glenn Zell, Atlanta, Ga., for defendant-appellant.

Michael P. Carnes, U. S. Atty., Dallas, Tex., Ronald C. H. Eddins, R. H. Wallace, Asst. U. S. Attys., Fort Worth, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before GOLDBERG, SIMPSON and GEE, Circuit Judges.

GOLDBERG, Circuit Judge:

Bill Mahar appeals his conviction for interstate transportation of stolen goods, 18 U.S.C. § 2314, and receiving and concealing stolen goods, 18 U.S.C. § 2315.Before trial, the district court disqualified Mahar's retained attorney because of a conflict of interest.At the hearing which preceded the disqualification, the district court showed considerable and commendable concern for Mahar's fundamental sixth amendment right to be represented by fully independent counsel not possessing a conflict of interest.Mahar now contends, however, that the district court violated his distinct sixth amendment right to retain counsel of his own choosing, even when the chosen counsel suffers from a conflict of interest.

We find that at the disqualification hearing Mahar did not indicate a desire to waive his right to fully independent counsel.He did not assert his right to proceed with counsel possessing a conflict.We therefore affirm.

I.

The two count indictment in this case came down September 5, 1974.Count one charged Mahar with interstate transportation of stolen goods.Count two charged Mahar, Fred Michael Bryson and two others with unlawful reception and concealment of stolen goods.A separate indictment charged Bryson, but not Mahar, with related offenses.

Mahar's first attorney requested and was granted permission to withdraw.¹Mahar appeared at the October 4, 1974 arraignment without counsel.He pleaded not guilty, apparently with the assistance of counsel appointed by the court for the arraignment only.The court set trial for October 21 and advised Mahar, who was financially ineligible for court-appointed counsel, to obtain an attorney.

Mahar returned to court on October 21 without having obtained an attorney.Meto Miteff was then in court representing Mahar's codefendant, Fred Bryson.Mahar hired Miteff as his attorney.The record does not indicate whether Miteff apprised Mahar of the possible conflicts of interest or of the dangers the dual representation posed.²The court granted a continuance.

At the time he agreed to represent Mahar, Miteff was pursuing plea negotiations on behalf of Bryson.Four days later, Miteff concluded a plea bargain on Bryson's behalf.The Government agreed to move to dismiss the indictment against Bryson in the instant case in return for Bryson's guilty plea to one count of the related indictment.Of crucial significance here, the bargain also obligated Bryson to cooperate with the Government and to testify in its prosecution of Mahar.Bryson entered his guilty plea on October 25.

On January 27, 1975 the Government moved to disqualify Miteff as Mahar's counsel, citing Miteff's conflict of interest in simultaneously representing both Bryson and Mahar.At a hearing on the motion that same day, the Government told the court that it intended to call Bryson as a witness.The Government took the position that the patent conflict of interest required Miteff's disqualification.

Miteff argued that no conflict of interest existed.He said that he would not want to represent Mahar if there were a conflict.Mahar testified that he wanted to retain Miteff only so long as Miteff desired to continue.

On February 3, 1975the court disqualified Miteff.On February 11 a new attorney entered an appearance on Mahar's behalf.In early March Mahar moved for a continuance because he had suffered a heart attack.Trial commenced November 3, 1975.At no time during the nine-month period from February 3 through the completion of the trial did Mahar raise any objection to the disqualification of Miteff or to the performance of his new attorney.

II.

Mahar contends that his attorney should not have been disqualified.³The underlying constitutional standards are clear.A defendant has a right to be represented by fully independent counsel, free of any conflicts of interest posing a risk to the quality of representation.See, e. g., Glasser v. United States, 315 U.S. 60, 67-76, 62 S.Ct. 457, 86 L.Ed. 680(1942).Simultaneously, however, the sixth amendment entitles a defendant to waive that right and insist upon retaining an attorney with otherwise disqualifying conflicts.SeeUnited States v. Garcia, 517 F.2d 272(5th Cir.1975);United States v. Armedo-Sarmiento, 524 F.2d 591(2d Cir.1975);cf.Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562(1975)(defendant has right to self-representation).⁴The question here is whether Mahar attempted to exercise his sixth amendment prerogative to forego independent counsel.We conclude that he did not.

Our detailed review of the disqualification hearing transcript convinces us that Mahar did not assert a desire to retain Miteff despite a debilitating conflict.Rather, Mahar's position was that Miteff did not suffer from such a conflict.Miteff, speaking as Mahar's retained counsel, clearly indicated that he desired to continue in the case only if no conflict existed:

. . . I couldn't see a conflict in my own mind.Certainly, I would not want to be placed in the position of having a conflict, if I thought there was a conflict. . . .

Now, if the Court feels there is a conflict there, then if the Court tells me that the Court feels that under the circumstances, I shouldn't represent this man and for him to get himself an attorney, that is fine, sir.I would be willing to do that. . . .

Mahar himself said that he wanted to retain Miteff only so long as Miteff desired to continue.Neither Mahar nor Miteff ever mentioned that appellant might be entitled to insist upon retaining an attorney possessing a conflict.Mahar's position was solely that Miteff did not suffer an otherwise disqualifying conflict.

The trial judge found a conflict, and we agree.From the outset of Miteff's representation of Mahar, the conflict was patent.While representing Mahar, Miteff advised his other client, Bryson, to agree to testify against Mahar as part of a plea bargain.Mahar was thus in the unacceptable position of having his own attorney help the Government procure witnesses against him.

The situation was little better after the plea bargain had been concluded.Bryson remained subject to an indictment that the Government had promised to move to dismiss, and the Government's satisfaction with Bryson's cooperation and testimony was an express condition of the bargain.As Bryson's counsel, Miteff was in the position of advising Bryson with respect to the proper balance between testifying fully and invoking his fifth amendment right against self-incrimination.And even if Bryson determined to testify fully, he faced decisions with respect to cooperating with the Government: whether to make himself available to the prosecutors for extensive pretrial interviews, if so whether to answer questions narrowly or to volunteer information freely, and whether to cooperate with the defense in the preparation of Mahar's case.

With respect to each of these issues Miteff's conflicting loyalties would press in different directions.As Mahar's lawyer, Miteff should presumably have sought to interview Bryson and to prepare Bryson from Mahar's point of view.As Bryson's lawyer, on the other hand, Miteff's job was to prepare Bryson pursuant to the goal of effectuating the plea bargain or minimizing prejudicial consequences in the event the bargain fell through.We do not believe that Mahar's interests could be as well advanced by Miteff as by an attorney not suffering these divided loyalties.⁵

The conclusion that there was a conflict, coupled with Miteff's statement that he did not wish to continue if such a conflict existed, leads us to uphold the district court's decision to disqualify Miteff.If Mahar had expounded his right to continue Miteff as his counsel, the district court would have had no choice but to allow Mahar the right to choose his own counsel.Even the acutely attuned conscience of a judge cannot supervene the sixth amendment.In this case, however, when the conscience of the judge rang forth with the message that a defendant was nearing trial with...